Friday, July 31, 2009

Iris Black got someone else's bank account information and used it to make six purchases that total $377.99. She admitted the offense when questioned by police and pled guilty. She didn't really have any significant criminal history, so back in 2005, she's sentenced to 90 days in jail and three years of probation.

A year after she gets out, she violates her probation by not showing up for required drug testing and not keeping her address updated. She again admits everything, was sentenced to (and served) some more jail time, and probation was continued on some harsher conditions.

Another year passes, and again she gets violated when she admits that she's relapsed into drugs. Her probation is revoked and she's sentenced to drug rehab. In January 2008 her probation gets reinstated but extended until 2010.

Then, in early 2008, she gets violated again, this time for having meth in her apartment and having credit cards -- in her own name, apparently, but that's in violation. What do you do at that point?

California Rule of Court 4.435(b)(1) provides: "On revocation and termination of probation . . . when the sentencing judge determines that the defendant will be committed to prison: . . . The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term." There's no way she'd have been sentenced to years in prison back in 2005 for pimping $377.99; moreover, she's already spent additional jail time and incurred other penalties for her violation. On the other hand, clearly probation isn't working out, so she's going in.

Assume that back in 2005, if you decided not to sentence her to probation, you'd have sentenced her to a year in prison. (This seems a quite reasonable assumption given the facts of this particular case, by the way.) What do you do now? Give her the year? Feel constrained to do so by Rule 4.435, which says that you can only take into account events existing at the time probation was granted? Give her the middle term of two years in light of her violations, which is what the probation office currently recommends? Or go to the extreme and give her the aggravated term of three years?

Thursday, July 30, 2009

You might want to read this opinion to see the scintillating discussion therein regarding whether "Asians" -- as opposed to "Chinese" or "Filipino" -- are a cognizable ethnic group for purposes of juror composition. Except that I'm being facetious, since the case merely raises the issue without deciding it.

The only reason I even mention the opinion, which is another in a long line of cases in which the California Supreme Court has unanimously affirmed a death sentence, is idiosyncratic. As far as I can tell, this is the first time ever that someone with the first name "Shaun" has been sentenced to death. Back in the early 70s, there was a "Sean". But heretofore, no "Shaun".

So I don't like the silent precedent here, as I'd rather not be put to death. Thankfully, I'm not in the habit of kidnapping people and putting one in their ear.

We all know about the desperate backlog there. That's a given. I've also seen a plethora of dismissal cases come up to the Court of Appeal as a result. Same old same old. You've got a time limit. Bring 'em to trial or dismiss. You can always refile (at least once).

Here's yet another one. But with a twist. Here, the Riverside District Attorney's Office files an appeal. And loses, of course. Since, indeed, there were no courtrooms available.

But guess what? Since the DA's Office filed the appeal, rather than merely refiling, they're now barred from refiling the charges against the defendant. So he goes off scot-free.

Did the Riverside DA really not know about this? Is there any reason for not filing a writ instead, which the Court of Appeal expressly notes (in footnote 15) would have been equally effective to challenge the dismissal without resulting in precluding refiled charges? Moreover, of the hundreds of criminal cases in which the charges were dismissed due to the lack of a courtroom, did the Riverside DA really have to choose to file an appeal -- with the resulting preclusion -- in a serious case like this one (here, a shooting with a semiautomatic firearm with great bodily injury) rather than the plethora of lower-level cases involving nearly identical facts?

This seems not-especially-thought-out to me. Maybe I'm missing something. I certainly hope so. Because I really don't see the reason why this defendant needed to be let of scot-free as a result of the DA's decision here.

Wednesday, July 29, 2009

Am I sympathetic to the plaintiff? Of course I am. His teenage daughter has specific medical needs (she's a diabetic), and has psychological and substance abuse problems, and as a parent, he wants the best available treatment for her. So he puts her in a residential treatment program in Malibu, even though his insurer says it's not covered and will only pay for two alternative (allegedly inferior) facilities that aren't able to deal with diabetics in nearly the specialized manner as the place in Malibu.

Of course that's what a parent would do. He then sues, alleging that the treatment's covered. Again, I totally understand that. And he's able to find an alleged ambiguity in the ERISA Plan documents that you could argue makes the Plan ambiguous -- and hence, resolving ambiguities in favor of the insured, creating coverage.

Judge Hall says that the Plan's nonetheless clear and doesn't provide coverage. I agree. It's just pretty darn clear to me that the Malibu place isn't covered, and that that's what any objective reader of the language would conclude. Judge Pregerson dissents, albeit with sincere (in my view) respect. With language like: "I respectfully disagree. . . . [T]he majority opinion’s interpretation of the plan is reasonable. I believe, however, that there is another reasonable interpretation."

I think this is an area where (understandable) sympathy -- "empathy," if you prefer -- plays a different role for Judge Pregerson than it does for me. I too would feel sort of bad about affirming. But I would. Even though I could come up with an argument in favor of finding coverage -- one that's not at all laughable -- in the end, the law requires otherwise. So that's what I'd do.

This is a fascinating case in which the defendants allegedly pumped up a stock through manipulation and in which Deutsche Bank allegedly made money through share-loaning. (I know a little bit about this practice in connection with a law review article that Frank Partnoy and I published about it and its effect on shareholder voting.) The question is whether a class should be certified. The district court says no, and the Ninth Circuit affirms, holding that individual questions of reliance would predominate over the common claims.

The best argument that plaintiffs have in response is that they don't have to prove individualized reliance due to the fraud on the market theory, which presumes reliance. The big fight is whether that theory applies when, as here, the deception arises not from material statements or omissions, but rather from direct manipulation of the market -- thereby destroying the presumed "integrity of the market".

On this issue, the per curiam opinion says that the Ninth Circuit is "chary" to adopt such a doctrine, and on that basis affirms the district court's decision not to certify. But Judge O'Scannlain concurs to say: "Look, we can't just be 'chary'. We gotta decide whether or not that's an accurate statement of the law. Because if that is an accurate statement of the law, then the district court erred on a legal matter, and we've got to reverse. Plus we can't hold that individual reliance claims predominate, since they don't if the fraud-on-the-market theory is applicable. Now, as you might predict, I'm more than happy to reject this doctrine on the merits, and I do, so I've got no problem affirming. But you've got to decide; you can't just punk out." To which Judge Graber says (in her own concurrence): "No we don't. We can just say that the district court didn't abuse its discretion in refusing to recognize the new theory, and affirm on that basis. Which is what we do."

For the most part, I think Judge O'Scannlain's correct. If the law, rightly applied, is X, then a district court has to apply X. It doesn't have "discretion" not to. That's true even for novel legal theories. Federal courts can't say: "No one has ever before argued or held that income taxes violate the Privileges and Immunities Clause, so I'm not forced to so hold." That's not how precedent works. So I gotta agree with Judge O'Scannlain on this one.

Mind you, on the underlying merits, I'm not at all sure that I agree with him that the fraud-on-the-market theory is inapplicable. To be honest, I'll have to talk more with Frank about this, whose knowledge in this area is both infinite and infinitely greater than mine. (For proof, watch him on the Daily Show a couple of months ago, and notice that he manages to get a laugh even before Jon Stewart does). But my initial thought is that investors do indeed rely on the integrity of the market -- indeed, centrally so -- and that the fraud-on-the-market theory may properly be even more accurately applied to outright market manipulation than to public misstatements. As a result, I may only be half in Judge O'Scannlain's camp.

That said, let me support Judge Graber's view in a slightly more nuanced manner. I don't think that district courts have discretion to refuse to adopt new theory theories if accurate. But there is nonetheless a limited strain of jurisprudence at the circuit court level that suggests that "immature" torts should not be certified for class resolution; Castano (a Fifth Circuit tobacco case from the mid-90s) is a classic example. Whether those cases are right or not is an open question; they demonstrate extreme hostility to class resolutions, and so I'm not at all sure their assessment of the merits is correct. But this is at least an operative theory on which Judge Graber could rely in saying that the Ninth Circuit need not reach the relevant legal issue. The problem is that these cases are "superiority" cases, not "predominance" cases, so it's hard to affirm the district court's decision on that basis given the particular decision here. But it's at least something, and I think such an approach may make more doctrinal sense than the "discretion" point that Judge Graber asserts.

All in all, an interesting case. And one in which I may have a slightly different perspective than any of the members of the panel.

Tuesday, July 28, 2009

How often do you see an opinion begin by quoting lyrics from an old jazz standard? Here you go.

It's actually pretty relevant, too. Okay, maybe not relevant, but at least somewhat on point. Here's how the opinion begins:

"September Song" laments, "Oh, it's a long, long while from May to December." June 14 to September 5 is a shorter while. But here it is too long a while. In an affidavit in support of a search warrant, June 14 is the date that criminal activity is alleged to have occurred. September 5 is the date the search warrant issued. Here we conclude the warrant fails the test of time, and the good faith exception to the exclusionary rule does not apply.

I do wonder which version of the song Justice Gilbert was thinking of. Maybe the most famous version is by Sinatra -- though old-timers might think of the version by Jimmy Durante (and really old-timers might even recall it from the 1938 Broadway musical Knickerbocker Holiday). If you're a hipster, though, you gotta love the version by Lou Reed. Which, I imagine, sounds especially (and perhaps only) good on smack. Ah, the 70s. (My favorite in this genre is honestly the Cowboy Junkies' cover of Lou Reed's Sweet Jane, which in my view out-Lou Reed's Lou Reed.)

This is not the only legal reference for that song, by the way. There was also an early 90s BBC sitcom about a widowed solicitor and a much older woman called -- you guessed it -- "May to December". I'm sure we'll see a U.S. adaptation on CBS sometime soon.

Given that the temporal gap in the search warrant here was actually from June to September (rather than May to December), Justice Gilbert might also have wanted to cite the 1991 article in Teaching Mathematics and Its Applications (talk about fascinating!) entitled: "It's a Long, Long Time from June to September." Proving once and for all that some people don't actually know lyrics very well. As if that principle actually required proof.

As someone who's in academia, by the way, and hence has the summers (technically) off, I'm going to have to add my own two cents. Which is that the period from June to September is not long at all; indeed, it's way too short. Which, as the clock starts to tick on the recommencement of law school, is a fact of which I'm highly cognizant at present.

The principal reason to read these opinions is because they contain a neat dialogue between Judge Reinhardt, on the one hand (with Judge Berzon concurring), and Judge Bybee in dissent. It's an ineffective assistance of counsel case, so it's quite fact-bound. But you definitely see the respective political positions of the authors play out. Simply put, Judge Reinhardt sees the world differently than does Judge Bybee. Anyone who thinks that judges don't bring their worldviews to the table when they decide cases should read this one and rethink their position.

At the en banc vote stage, the split continues. Six judges dissent from the denial: Judges Kleinfeld, Tallman, Callahan, Bybee, Bea and Randy Smith. Who, again, essentially advocate that the Supreme Court take this one up and slap down the Ninth.

The downsides of reading these opinions are twofold. First, they're extremely long. You're looking at 135 single-spaced pages. Second, and potentially related to the first, for some reason, the Ninth Circuit's web site is incredibly slow today. It took me five full minutes to download the thing. Crickey.

But it's the week after the Ninth Circuit judicial conference. Not much has been coming out lately, either on the federal or state side. So take your time. Read a leisurely opinion or two. Relax. That's what everyone else seems to be doing, so join the fun.

Monday, July 27, 2009

Justice Duffy writes it in a fairly informal style. It's about timeliness and certificates of probable cause and the like in the context of a very ambiguous set of rules. Justice Duffy basically says: "I see how this is confusing to everyone. Let's simplify this and speed it up. Looks like the request was timely to me, so we'll go ahead and grant a peremptory writ of mandate, and on remand, go ahead and address the merits." Which seems right.

Speedy justice that cuts through the paperwork is often a good thing. Especially on a Monday.

Friday, July 24, 2009

On Monday afternoon, Justice Perluss published this opinion, which involved the application of res ipsa loquitor to a common carrier (in particular, an accident between a car and an MTA bus).

On Tuesday morning, I wrote this, in which I noted that while I thought the opinion might be correct as a precedential matter, there were still some doctrinal things about it that bugged me.

On Thursday, the Court of Appeal sua sponteamended its opinion, responding to at least one of the concerns I had (the harmless error/burden of proof point).

And it's a pretty darn good response. One that may well, again, correctly interpret California precedent.

I have some extended thoughts about the amendment as well, but they're a bit too involved for a blog post. Or at least an early Friday morning post. So I'll leave 'em for extended discussion at some later point.

Thursday, July 23, 2009

What's the probability that sometime stealing a stereo out of a car is armed? Five percent? Twenty percent? Fifty percent? Go ahead and try to quantify it in your mind.

Because it matters. Here, Osborne's working on his own car, but the police -- who don't initially know whose car it is -- wrongfully think he might be stealing the stereo. So, after they approach him, they pat him down.

Assume the initial detention (telling him to "Stop" and "Come here") was justified. With respect to the patdown, the law is that the police can pat you down if they have a "a reasonable suspicion that you are presently armed and dangerous." Does the fact that you might be stripping a car or stealing its stereo make it reasonably likely that you're armed?

Justice Sepulveda hints in this opinion that the answer is "Yes". Holding that even though "[a]utomobile burglary is not [] recognized as a classic violent felony . . . . an individual suspected of such a crime [may] reasonably be anticipated to be armed with a weapon (such as a knife or a firearm)." Justice Sepulveda also cites with approval secondary authorities in support of "so-called 'automatic' patsearches where an individual is suspected of burglary." The theory being that if you're stripping a car, you're likely to be armed.

Ultimately Justice Sepulveda adds a couple of other (incredibly minor) factors here that arguably assist in establishing the fact that the defendant might be armed -- including, ironically enough, the fact that Osborne was a large 240 pounds (though to me that proves that he was less likely to need and carry a weapon) -- to hold that the "totality" of the circumstances suggested that he was armed. But clearly the biggest factor was that he was allegedly stealing a stereo, and I have a keen sense that that alone would have been enough for the panel. Which is an interesting result. Think about whether you agree.

I have a separate thought about post-hoc conclusions in these search and seizure cases that I'll briefly share as well. Almost all of the cases that get to the Court of Appeal are -- not surprisingly -- cases in which the search does indeed result in evidence of a crime. For example, here, there indeed was a gun. Searches that result in evidence often reach the Court of Appeal in the context of suppression motions; by contrast, searches that do not result in evidence rarely go up (since there's often no arrest, conviction, or suppression motions), with the rare exception of Section 1983 cases.

Not only does this lead to some results-oriented jurisprudence -- e.g., you want to affirm because we know the guy's a bad dude, plus we naturally give deference to the officer's suspicion because it turns out s/he was right -- but I think this one-way rachet may also tend to give appellate judges a somewhat distorted view of the facts and circumstances on the street. When you've got lots of cases involving searches that turn up guns, you may have a keener sense that virtually everyone has a gun (or that most people searched have a gun) than actually exists.

I don't know how much this plays into things, but I'd be surprised if there wasn't some tendency along these lines. It's only natural.

Of course, someone could rightly respond that someone sitting on a bench -- or, like me, in an ivory tower -- may similarly not recognize how prevalent guns really are, since none of our friends are typically packing on the job. Fair enough. It'd be interesting to figure out how these competing factors actually play out, and which one predominates.

I will not claim that I read every unpublished decision of the Court of Appeal, even those from down here in San Diego. 'Cause I don't.

But I do occasionally peruse them. Sometimes you stumble upon a gem. Like this one.

There's nothing really important to say about the opinion itself, which involved an appeal by an insurance company that was attempting (quite belatedly) to set aside a large default judgment entered against someone it had decided not to defend. What's noteworthy about the opinion is the attorney-slap (and sanction) given to the insurer's counsel, Lance Orloff. Who's called out by name in the opinion.

I won't recount all the details of what Mr. Orloff allegedly did, which Justice McConnell describes at length. I will, however, present a taste of the Court of Appeal's reaction thereto:

"On March 26, 2009, this court, on its own motion, issued an order to show cause why we should not impose sanctions against Monterey and its counsel of record, Lance Orloff, for the misrepresentation of the appellate record in both the opening and reply briefs. On April 6, 2009, they filed a written opposition in which Orloff admitted he did not sufficiently review the facts and "relied on an unfortunate clerical error in the trial court's order". . . .

We conclude sanctions of $750 are in order for Orloff's misrepresentation of the appellate record. The misrepresentation is particularly egregious because Orloff is an appellate specialist with 22 years of experience, and he based Monterey's appeal principally on his erroneous rendition of the facts, thereby making the appeal largely frivolous and wasteful of this court's time and resources. Even if the misstatements of fact in the opening brief can be attributed to Orloff's failure to adequately review the record, in the reply brief he does not acknowledge his errors and instead persists in misleading the court."

I'm sure that a law firm partner can handle a $750 sanction. It doesn't even require reporting to the State Bar. But the verbal spanking? Ouch. That's gotta hurt. The only saving grace -- for which I'm certain Lance is (or at least should be) eternally grateful -- is that Justice McConnell left the opinion unpublished.

Tuesday, July 21, 2009

Last year, I agreed with Judge Wallace. Back then, in U.S. v. Giberson, the police had a warrant to search a home for evidence of evasion of child support and saw some evidence in plain view that pretty clearly indicated that the defendant was making false identifications from his computer. So they got another warrant to search the computer for supporting evidence and stumbled upon some child pornography as well. That's okay.

But in today's opinion by Judge Canby, the police had a warrant to search a home for drugs, saw absolutely nothing incriminating, clicked on a file on the defendant's computer, and discovered some child pornography. That's not okay. The warrant here, unlike the one in Giberson, didn't authorize a search of the computer. Nor -- again unlike Giberson -- was there any reason at all to believe that any drug information was on the computer. Hence you aren't authorized to search.

The mere fact that drug information could have been on the computer (yeah, that's why you clicked on that jpeg file, I'm sure) isn't enough. If the warrant doesn't allow a search of the computer, and there's no reason to believe there's evidence relevant to the warrant therein, you can't rummage through the computer's files looking for whatever you might be able to find and charge the guy with.

Judge Wallace gets it right in 2008. Judge Canby gets it right in 2009.

It's a routine bus accident in L.A., the kind that I'm sure happens at least weekly. A bus is at the intersection of Van Nuys and Roscoe and rear-ends another car, throwing a passenger out of her seat and making her hit her head. The passenger sues, claiming the bus driver was negligent. The MTA, by contrast, contends that the car, not the bus driver, was at fault by changing lanes and then suddenly stopping. The jury finds for the MTA, and the principal question on appeal is whether the plainiff was entitled to a res ipsa loquitor instruction.

On the one hand, I'm sure that Justice Perluss is correct that such an instruction was required. The MTA is a common carrier, with the heightened duty that brings, and there's a bunch of longstanding precedent that says that accidents involving common carriers require a res ipsa instruction. Sure, those cases are way old -- from the 1940s and stuff -- but they've not been overruled, so the Court of Appeal can only do so much. (Plus, I learned from a footnote in the opinion that the first res ipsa loquitor case was allegedly not the famous English "barrel-rolling-out-of-the-warehouse" case, but was actually a common carrier case in which the axle of a stagecoach broke. Neat stuff.)

On the other hand, however, as a matter of first principles, a res ipsa instruction in this context seems silly. From what I vaguely recall from first-year torts, res ipsa applies only when an "accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible." (Okay, that's a quote from a 1975 California case, not memory, but the principle is the same.) Now, maybe in 1940 or whatever, bus accidents were almost always the fault of the bus driver, or you couldn't figure out why, but no way that's true now. Nowadays, these are just like any other accident; either driver might be at fault, and the jury's job is simply to figure it out in light of the evidence. It's not like a barrel out of a warehouse, which rarely happens and, when it does, it's likely to be the warehouse's fault. Bus accidents happen all the time, and they could well be anyone's fault. So it seems like res ipsa shouldn't apply.

It's true, of course, that common carriers have heightened duties of care to their passengers. But we properly give an instruction on that at trial, and adding res ipsa on top of that doesn't seem like what res ipsa's designed to do. It's one thing to say "bus drivers need to be really careful; remember that when you decide liability." It's entirely another to say "you should assume that any accident involving a bus driver is the driver's fault." Lots of situations that involve heightened duties (bailments, fiduciaries, etc.) don't get res ipsa instructions. That's because there's a difference between duty and res ipsa; the two are designed for different situations, and saying you're entitled to the latter due to the former seems wrong to me. At least, again, as a matter of first principles.

Which brings me to my third mind. Even if a res ipsa instruction should have been given, it is reversible error? Justice Perluss says that the liability issue at trial was close, and I assume he's correct. To me, that's perhaps necessary, but not sufficient, for reversal. Res ipsa loquitor is only a presumption -- a burden-shifting device. Here, there was active evidence on both sides as to which driver was at fault; witnesses, reconstructions, etc. The jury weighed the evidence and concluded that the driver of the car, not the bus driver, was responsible. Given that fact, it seems to me that a res ipsa loquitor instruction shouldn't matter. Yes, res ipsa requires that the defendant (which now has the burden of production) put forth evidence, but the MTA clearly did that here, and the jury found that evidence persuasive. Res ipsa may also shift the burden of proof, but that only legally matters if the evidence is in equipose; in other words, that the jury concludes that it's exactly equally probable that both sides were liable. What's the chance that the jury thought evidence was in exact equipose in a sitaution like this, even in a close case? That it was exactly 50/50 as to who was at fault, not 50.00001% to 49.99999%? Pretty much none. In which case the failure to give an instruction, at least in a situation like this, is indeed harmless error, and the jury's verdict should thus be upheld.

Do I understand that juries don't actually work like that? That instructions like res ipsa may well make 'em put a weight on the substantive scale in favor of the plaintiff? Sure I do. But the instruction isn't supposed to work that way, and I see little reason to reverse on the ground that the decision would be different because if the court had given the right instruction we're pretty sure the jury wouldn't have accurately followed the law.

In short, this is a case that takes me way back to the 20th century, sitting in Torts in Austin Hall and learning a little bit of Latin. A neat little trip on a bright, sunny and beautiful Tuesday. The type that Cambridge so rarely saw during my sojourn there. Given precedent, I understand the reason to come out the way Justice Perluss does. But as a policy and doctrinal matter, I wonder if that's the right result if we could write on a blank slate.

Monday, July 20, 2009

Sure, a defendant's ability to cross-examine that witness is somewhat limited, since she's using somewhat ambiguous facial expressions, gestures, and lip movements to both understand and respond to questioning. So her answers -- and her ability to understand the questions posed to her -- may often be unclear. But you simply do the best you can; the Confrontation Clause does not preclude the jury's reliance upon her testimony.

That seems right to me.

I also found tangentially interesting an unpublished California Court of Appeal opinion that Judge Fletcher discussed in her opinion. That opinion, rendered in 1996, affirmed a conviction when a key witness -- who was left speechless and a quadrapalegic after being shot -- was permitted to testify by tapping once for "yes" and two times for "no".

Now, I'm not a super geek. At least compared to the thousands of people who are currenly flying into San Diego this week. But upon reading this, my mind instantly returned to a classic episode of Star Trek in which Captain Christopher Pike (the original commander of the Enterprise) testifies in almost precisely such a fashion, beeping (through a machine) once for yes and twice for no. (I'd be even more of a geek if I admitted that I also knew that there was a Futurama episode that mocks this episode, and in which Fry testifies in the same fashion, so I shall decline such an admission.)

Maybe I'm jaded after reading all the death penalty cases over the past couple decades. But I don't entirely see how this one is different than your usual run-of-the-mill case of murder during a robbery.

Of course, one might take the position that everyone who commits such a crime should be sentenced to death. But, for better or worse, that's not our system.

None of this is relevant to the decision of the California Supreme Court, which unanimously affirms the conviction and sentence. Just thought I'd share my reaction.

P.S. - Some nice conduct by the prosecutor during closing argument here. My favorite: Noting that the defendant, who was homeless, slept beneath the sidewalk, "living like a mole or the rat that he is." My reaction to that was slightly different than the Court's, which blithely concluded that it was "founded on evidence in the record and fell within the permissible bounds of argument."

I would have thought that everyone could agree that you can't let the jury see a uniformed and armed bailiff following the defendant in a criminal case wherever he goes -- at least if there's not an actual security risk. I'd have thought that everyone would recognize the prejudice inherent in having the bailiff follow around this one particular individual -- at his seat, on the witness stand, etc. -- in the eyes of a jury. I'd have thought that to do this in every single criminal case would be clearly improper, and that everyone would recognize this fact.

The Court of Appeal does reverse the conviction here. But it's over the dissent of Justice Haerle. Moreover, the trial judge -- Judge Nancy Stark up in Contra Costa County -- apparently does indeed have the bailiff follow the defendant around wherever he goes (and conspicuously, at that).

The analogy to making 'em wear shackles and/or an orange jumpsuit seems pretty strong to me.

Do I have a problem with ordering a bailiff to follow around a defendant who's known to be at risk of trying to escape or commit violence? Nope. Not at all. (Though a curative instruction on this point to the jury seems appropriate as well.) Would I have a problem with ordering the bailiff to sit beside every witness on the stand just to play it safe? Nope. That's good too.

But singling out the defendant and having the bailiff follow him and him alone around seems incredibly prejudicial, especially in an assault case. You're sending a message to the jury, whether you intend to send that message or not. And they'll hear it loud and clear.

Thursday, July 16, 2009

For a long time, Judge Fernandez definitely liked big words. His opinions were scattered with 'em, and it was a sort of trademark for him.

Often (indeed, usually), I thought that the unnecessary use of ten-cent words detracted from -- rather than added to -- the clarity of Judge Fernandez's opinions. And since I'm far from shy, I didn't hesitate to say so. Including a bunch of posts about Judge Fernandez's veribage back in 2005; for example, here, here and here. (I'm not a total prude on this point, and sometimes I think long or unusual words are entirely appropriate.)

But then a funny thing transpired. After 2005, I stopped seeing such an egregious use of ten-cent words. I'm definitely not egocentric enough to assert cause-and-effect, and it may well be that I simply stopped noticing the problem notwithstanding its continuation. Nonetheless, I did perceive a real change in Judge Fernandez's opinions. For the better.

Until today. I typically don't look at the author of the opinions before I read 'em, because I want the experience -- and my reaction -- to be "pure" and without prejudice. But even early on in my reading, after stumbling upon a number of unnecessarily fancy words, I said to myself: "This can only be written by Judge Fernandez."

Let me just give you a taste. Judge Fernandez first uses the phrase "hyaline alembic" -- a term that I not only had to look up, but which doesn't even appear anywhere on Google or Westlaw -- and then uses words like "scry," "pellucid," "trenchant," and "ineluctable" when much less fancy words would do, at least in my pedestrian view.

I admit it's sort of cool that Judge Fernandez knows words like "hyaline alembic" -- words I had never even heard of -- and can find a way to use 'em in a sentence. Though I also think that the advent of the electronic thesaurus somewhat lessens the honor. More importantly, while I'm in full support of having those words in a Reader's Digest quiz, or maybe in fine literature, I'm not sure they really fit in a judicial opinion that's at least allegedly supposed to be accessible to the masses. Maybe in the old days the use of fancy words served to somewhat deify the judiciary (yeah, yeah, I understand the irony of my using that word) and had that purpose and intent, but we're well past that point. And rightly so.

On the merits, the opinion itself is actually pretty cool, and smartly done, at least for procedural freaks such as myself. It's all about whether you can remove appeals of state administrative decisions. Neat stuff if you're a federal courts scholar. Just ignore the lingo.

It's a case that ultimately gets dismissed on Article III standing grounds, and for understandable reasons. But check out the facts. Basically, Maricopa County (Arizona) has three separate DUI courts; a "regular" (read: white) court, a "Spanish-speaking" DUI court, and a "Native American" DUI court. The various courts have different procedures and, allegedly, divergent results. For example, the Spanish-speaking DUI court is presided over by a single judge, who's allegedly very lenient, and the Native American DUI court allegedly sends people off to sweat lodges and the like in a way that doesn't happen in the regular court.

Is that okay? Becuase we dismiss this one for lack of standing, we may never know. The Spanish-speaking court, to me, is the most troubling. On the one hand, it may well make administrative sense to have Spanish speakers in a single court in order to facilliate translation and the like, and may also make sense to assign a Spanish-speaking judge there. But when people of Category X get a particular judge, the particular preferences of that judge then categorically benefit or disadvantage that group, as well as individuals who are not in Category X. So while it makes sense, there are serious equity problems as well. Hence the real issue. Ditto for the Native American DUI court, though because there are fewer allegations with respect to that one here, I can't really tell how it operates.

So this is definitely a troubling regime, and one well worth thinking about.

"Hey, Hawai'i Supreme Court. Some plumber went to a Costco in your Great State to unplug a drain, poured some strong chemicals down it, and accidentally got a customer sick from the fumes. The Mainland States are split about whether the 'pollution exclusion' in most insurance policies (including this one) covers only traditional environmental pollution or stuff like this, and your Awesome State hasn't yet answered this question. How about taking this one over for us and telling us what the answer is?"

"Vigilantism—whether manifested by group action such as that of a lynch mob or by individual rogue activity—is the enemy of orderly law enforcement. It is infinitely worse when practiced by a law enforcement officer such as Detective Beene, for such officers are cloaked with authority that can too readily turn the wheels of justice into wheels of constitutional injustice.

Yet Beene, no doubt prompted by defendant Noster’s unsavory past, seized on his delinquency in payments on the 2001 GMC Sierra truck to distort that delinquency into a nonexistent “theft” of the truck. Never mind that Noster had not only made the initial down payment but had regularly made the first seven monthly payments on the vehicle before he went delinquent. Never mind that GMAC Financial Services, which had financed the transaction and was thus the creditor directly interested in getting repaid for the credit that it had extended (and having ample resources at its command), had taken no steps to label Noster a thief. Instead its efforts had been devoted exclusively to seeking an orderly repossession of the truck, just as it would with any other buyer in default on his payments. Noster was a delinquent purchaser, yes—but a thief? Decidedly not.

To be sure, the majority is correct in observing that Beene —like the officer in the Wallace case—“was not taking the bar exam” when he then performed his sleight of hand, somehow converting Noster’s assertedly “unlawful” (the majority’s word) retention of the vehicle when he went delinquent after having made the first seven payments into a purported “theft” of that vehicle. But having said that, the majority has itself had to strain in an effort to place Noster’s post-delinquencyretention of the vehicle under a “theft by false pretenses” rubric (what “false pretenses” were made by Noster, pray tell, when he bought the vehicle and thereafter proceeded to make a substantial series of the required installment payments?).

Essentially the majority seeks to transmute base metal into gold by transforming Detective Beene’s unequivocal statement that the vehicle was stolen into some notion of “criminal fraud” or the like. With all due respect, I believe that such revisionist history regrettably whitewashes Beene’s own unlawful conduct, effectively creating a kind of asserted “probable cause” when in fact Beene was totally lacking in probable cause to label the vehicle as “stolen”. . . .

[T]he majority in this case—fully aware (as I am too) that Noster is a very bad man indeed [SPM - Among other things, Noster is potentially planning terrorist acts]--has opted to ignore Beene’s obvious belief that when it comes to dealing with someone he views as among the dregs of society, the ends somehow justify illegal means. We are entitled to expect—and to get—better than that from the personnel to whom we entrust the powers of law enforcement, not of law breaking. Accordingly I respectfully dissent."

Pretty powerful. Needless to say, Judges Callahan and Ikuta do not agree. See what you think.

That's the only way I can explain the structure of 18 U.S.C. sect. 2252A, which is the main federal child pornography statute. To the detriment, sadly, of a coherent and rational statutory scheme.

Section 2252A(a) contains a plethora of provisions that probibit pretty much any type of connection with kiddie porn. You can't "mail or transport" it (Paragraph (a)(1)), "receive or distribute" it ((a)(2)), "promote or distribute" it ((a)(3)), "sell" it ((a)(4)), "possess" it ((a)(5)), or "distribute" it "to a minor" ((a)(6)).

Makes some sense, right? This is bad stuff.

The problem is that (a)(5) offenses -- the "possession" provision -- doesn't have a mandatory minimum and has a statutory maximum punishment of 10 years. By contrast, all the other (a)'s I've mentioned have a statutory minimum of 5 years and a maximum of 20 years.

But that makes sense, right? We punish possession less than the other production-side stuff, which is worse. I get that.

Except for that pesky (a)(2). Which only requires that you "receive" kiddie porn. Remember, anyone who "receives" kiddie porn gets a minimum of 5 and maximum of 20. But if you "possess" it, it's only zero to 10. Which makes no sense: obviously, if you "possess" kiddie porn, you at some point "received" it. Why would any rational observer punish the two offenses differently?

Judge Willie Fletcher goes through the legislative history in a way that, to me, makes crystal clear that this was a drafting error by Congress. But he concludes that there's nothing the judiciary can do, since there's the plain language of the statute and at least a theoretical reason why the statute might be written that way.

I must say that Judge Fletcher's hypothetical rationale doesn't make any sense to me. He says: "Congress could have concluded that knowing receipt of child pornography should be punished more severely than mere possession because not all cases of possession require receipt. For example, the creator of child pornography will not have received it." Wait a minute. The reason for this statutory distinction is so the actual creator of child pornography (who hasn't "received" it) gets punished less than the guy who merely downloaded it?! The dude who actually abuses the child gets less punished than the guy who watches?! That's the best hypothetical rationale you can come up with? Telling.

Why does the statute read the way it does, in my mind? Because (1) Congress clearly screwed up, but (2) no one cares, since these are kiddie porn sickos who deserve to rot, and if the statute erroneously subjects 'em to a mandatory five or extra ten years in prison, screw 'em. You really gonna be the elected member of Congress who sponsors the "Child Pornography Protection Act" that reduces the penalty for kiddie porn?! Yeah, right.

You might think that the judiciary has a greater role in cases of clear legislative failure of this type. Or you might not, relying on the democratic process to solve the problem (if any) of manifest legislative errors.

Judge Fletcher adopts the latter view. Different strokes for different folks.

Tuesday, July 14, 2009

There is much talk of judicial "empathy" nowadays. Rightly so. It's an important issue. Upon which reasonable views have been -- and continue to be -- expressed on both sides.

But let me attempt to recharacterize the debate. At least in part. And to simultaneously reveal a little of what I think judging is (at least partially) about. 'Cause in my mind, it's not just "balls and strikes". It's a fair piece different than that -- even at the pedestrian, nonconstitutional (non-Supreme Court) level.

I'm inclined to address this issue not because of anything that's going on in the Sotomayor confirmation hearings today (though that's certainly on my mind), but rather due to a seemingly easy decision published today by the Court of Appeal that got me thinking about the subject. Which is somewhat surprising, in part because the decision is -- on many levels -- so obviously right. (Indeed, for that reason, it's per curiam, and doesn't even have a formal author.)

The opinion is about the relatively pedestrian issue of whether the appellant timely filed his notice of appeal. Not abortion, gun control, or anything like that. Something simple. The facts are pretty straightforward too. Plaintiff lost an anti-SLAPP motion (in part) on December 17, 2008 (an immediatebly appealable order), defendants served a notice of entry of that order on December 22, 2008, and plaintiff filed a notice of appeal on March 27, 2009. Everyone admits that's well more than 60 days after the December 22nd date, and hence the appeal is time-barred, unless an exception applies.

Here's the complexity. Plaintiff filed a motion for reconsideration on January 6, 2009. That generally extends the date to appeal (pursuant to Rule 8.108) until after the motion is resolved. The motion for reconsideration here wasn't denied until March 19, 2009, which generally would make the plaintiff's appeal -- which was filed later that same month -- timely.

Except for one thing. When plaintiff filed his motion for reconsideration, he forgot to include a declaration. A declaration that's required for such motions pursuant to Section 1008(a) of the CCP. When defendants pointed this out (in their opposition), the plaintiff filed a belated declaration that repeated under penalty of perjury all that he'd already said in his moving papers. The trial court accepted the late declaration -- since defendants incurred no prejudice of its absence -- and denied the motion on the merits.

But here's the thing. Rule 8.108(e) only extends the time to appeal if a "valid" motion for reconsideration has been filed. By "valid", we don't mean "meritorious", but the Advisory Committee says that we instead mean a"motion or notice complies with all procedural requirements." Plaintiff's motion didn't do so, since it lacked the required declaration. Hence the Court of Appeal holds -- unanimously -- that the appeal's untimely and must be dismissed.

This makes perfect sense. It's a cogent and fair reading of the statute. There's ample support for such a conclusion. Reasonable jurists could indeed so hold.

And I'd have gone the other way.

Why? Not because I have "empathy" for the plaintiff in any way in which that term is currently being bandied about. Yes, I have some traditional empathy for the attorney who failed to file the declaration, as we've all made mistakes. But that's not really what's motivating me -- and certainly not "empathy" for a particular party (as I could care less whether Branner or the Regents win this lawsuit, an issue on which I truly have no opinion whatsoever).

I do think, however, that there's a judgment call that should be made here, and that that's an important part of being a judge. Yes, the plaintiff screwed up. Yes, he technically failed to comply with Rule 8.108, and yes, the Advisory Committee's comments tend to suggest that he might therefore be viewed not to have filed a "valid" motion for reconsideration.

But that is not -- or should not -- be the end of the matter. There's something more there for me. To me, a sage judge needs to at least ask: Should that error matter? Is it fair and equitable, in light of the law, that the appeal here be deemed untimely?

Sure, you can respond -- as many judges undoubtedly would -- "Yes it is. He struck out. I just call 'em as the law requires." But, respectfully, the law's not a strike zone. We've got plenty of doctrines that may well come into play here and, to continue the analogy, may well support a conclusion that the plaintiff got just enough of a piece of the ball to foul it off.

What about, for example, the doctrine of "substantial compliance"? Yeah, he didn't submit a declaration, and that was required. But does that omission matter? He filed everything else. His assertions were contained in full in the memorandum. Why isn't that good enough? After all, Section 1008(e) also expressly requires -- in the same sentence as the declaration requirement -- that a motion for reconsideration contain the name of the judge who decided the prior motion. Do you really mean to tell me that if the moving party forgot to name the judge, but otherwise filed the motion entirely correctly (an in front of the right judge), we'd hold that there was no "valid" motion and hence an appeal was time-barred?

I know, I know. Some people will say: "But the statute is clear." But we've got plenty of common law doctrines -- including but not limited to substantial compliance -- that expressly (and rightly) depart from such a facile rejoinder. One need not even rely on the common law. In California, for example, we've got the Legislature's pronouncement in Section 3528 of the Civil Code that the law is to prefer substance over form; in Section 3532 that no one is required to perform an idle act; and in Section 3535 that the law disregards trifles. Any or all of these statutory dictates could easily be viewed to cover the omission here. Yes, it would have been nice if the plaintiff had included a declaration. Sorry about that. But the principal purpose of Section 1008 was satisfied even without it, and surely was satisfied by its (admittedly belated) inclusion. That should be enough.

Am I willing to call any deficiency a "trifle" or "idle act"? No way. You miss an important deadline -- a statute of limitations, a notice of appeal, etc. -- even by a day and you're out. You fail to file a piece of paper at all, or an important component of a motion on time (resulting in prejudice to a party or the court), and I'm totally on board for booting you.

But it takes judgment -- call it "empathy" if you want -- to decide what's what. To me, the lack of a declaration here wasn't important. The purpose of Section 1008 had been served, and the fact that there was no prejudice even alleged -- and that even the unfriendly trial court didn't boot the motion on procedural grounds -- is only further support for the fact that the deficiency shouldn't matter.

And I'd say that even if I thought Branner should lose, and even if I thought his lawsuit was crap. I'd still be of the belief that certain errors are excused -- or at least not given dispositive weight -- in circumstances in which human judges faithfully conclude that the purposes of a statutory scheme have been satisfied. When, as here, a process can fairly go forward notwithstanding a msitake, we should ignore the mistake. Whether that's due to "empathy" for the error-prone litigant (or his counsel) or otherwise, that's the way the system should work.

Which is, in the end, perhaps just another way of saying that robots wouldn't make good judges. That there's something necessarily and beneficially human about being a judge. At least as I would have them be.

Maybe a QuesTec system would work in baseball. But, in my mind, it doesn't work in judging. Yes, some calls -- maybe most -- are obvious, straight down the middle, and easy to decide. But when it matters, that's exactly when we need human judges. With an understanding about justice that's different than merely reciting text or original meaning.

Because, as in this case, there's often more -- sometimes much more -- to a game than what may first appear. For this reason, I think this case should have come out the other way. And that understanding why the case should -- and why it didn't -- may enlighten the debate about what qualities make for a superior judge. Even in those cases in which the result might initially seem crystal clear.

Today Judge Tallman edits this opinion (published last month) to make a single change, which alters the original opinion so that the mother of the molestation victim is now described as the victim's "biological" mother rather than her "natural" mother.

Monday, July 13, 2009

Isn't one point -- indeed, a central point -- of having a judiciary to convince people not to engage in self-help remedies? Isn't the point of a judicial system to provide a means of peacefully settling what might otherwise provide fertile ground for continuing misconduct?

Perhaps not. Judge Kleinfeld writes an opinion that's good in places, but that carefully omits any reference to thse important principles. Judge Kleinfeld holds (indeed, waxes poetic about the fact) that the federal courts shouldn't resolve a continuing and longstanding dispute between various Indian tribes about how much fish each tribe is allowed to take under a series of treaties with the United States in the 1850s. We already settled the issue of how much the tribes are collectively allowed t0 take, Judge Kleinfeld says, and he concludes that's all the federal courts -- or indeed, any relevant court -- should bother to say. You've got to work the rest out amongst yourselves.

So no federal court resolution. No state court resolution either, since the tribes have sovereign immunity. No tribal court resolution either, since no court of a particular tribe could bind any other tribe.

Judge Kleinfeld essentially says: "Work it out amongst yourselves." Which is undoubtedly a good idea. There's good reason for that; after all, negotiated resolutions often happen, and when they do, that's great.

But what if a negotiated resolution doesn't happen? Judge Kleinfeld essentially says: "Tough. You're on your own then." A statement that itself likely diminishes the chances for a negotiated resolution (since a variety of disputes get resolved only in the shadow of an otherwise compelled judicial resolution) and/or the efficiency and justice of any extrajudicial outcome (since might tends to make right when there's no judicial recourse).

Do we really want individual Indians engaging in pervasive self-help here; e.g., cutting the lines and traps of other tribes, ramming their boats, or escalating the matter to fisticuffs (or worse)? It seems to me you have to say more about this than -- as Judge Kleinfeld does -- merely that "not all problems have judicial solutions."

When an intertribal dispute is directly created (as here) by a federal treaty, it seems to me that there may well be a permissible basis for the judiciary -- upon request by a party, of course -- to get involved. To provide a neutral and just result to the resulting dispute rather than leaving the parties to exclusively rely upon their extrajudicial strengths.

I'd like to have seen the panel -- Judges Kleinfeld, O'Scannlain and Rymer -- at least address this point more directly. It seems to me an important one.

Friday, July 10, 2009

Chief Judge Kozinski is sometimes the swing vote in close civil liberties cases. So in this case, in which the other panel members are Judge Callahan and Thomas, it's not entirely surprising to discover that the party who wins Kozinski is the party who wins.

But just because you're sometimes a swing vote doesn't mean you're a moderate. This Kozinski opinion could have just as easily been written by Judge Callahan. "We don't care that the jury found in your favor. We don't care that you've been in almost constant lockdown for almost two straight years. We don't even care that the government entirely waived any immunity defense below. We're still finding in its favor on that point, and reversing the judgment. Because guess what: locking people down interminably does indeed reduce prison violence, as you can't attack someone in the yard if no one's ever in the yard. So there. Deference deference deference."

For what it's worth, Judge Thomas dissents. But the other two get the tango on this one.

Sometimes, even as an advocate, it make sense to play the strong, silent type.

The classic example is when the tentative has come out in your favor. You stand up, let the other side say its piece, and when it's your turn, volunteer to speak if the judge wants, but otherwise shut up and win. That's a no-brainer.

"Because I believe the City of Riverside waived its argument that 28 C.F.R. § 35.150(d) is not privately enforceable, I dissent. The City did not raise this defense in its answer, in a motion to dismiss, in a motion for summary judgment, or even at trial. Instead, the City waited until after trial — after the district court issued a decision in Lonberg’s favor — to argue for the first time in a motion for new trial that § 35.150(d) is not privately enforceable. Even worse, after Lonberg argued in his opening brief to us that the City had waived this argument by not raising it before trial, the City offered not one word of rebuttal about the waiver argument. It seems to me the City has doubly waived its argument — it did not raise it prior to trial in the district court and it failed to reply to the waiver argument made before us in the court of appeals.

Under Federal Rule of Civil Procedure 12(h)(2), a Rule 12(b)(6) defense must be raised at or before trial. Here, the City raised its defense after the trial concluded and after the district court rendered a decision against it, even though 'the City’s [defense] may be characterized as a Rule 12(b)(6) defense,' as the majority itself acknowledges. Even if we have the discretion to reach this issue notwithstanding the City’s failure to perfect it below, I do not see why we should. The City’s belated assertion of this new defense is most unfair to Lonberg who prevailed at trial in the face of the defenses that were raised and litigated. Why should the City be allowed to wait until it loses and then get another chance to raise an entirely new non-jurisdictional defense that was perfectly available before? This makes a mockery of the rules of civil procedure requiring that claims and defenses be timely raised. There are good reasons for these rules, too — like fairness and avoidance of surprise.

What is the City’s answer to Lonberg’s assertion that the new argument has been waived? Nothing. Not a word. In its brief before us, the City offered no explanation whatsoever for its failure to raise its argument earlier, or even a justification for why the argument has not been waived. The City’s brief is totally silent in response to Lonberg’s claim of waiver. This failure alone counsels against the exercise of discretion to consider the City’s new-found position at this late date.

I would affirm."

Well-spoken, eh? Judge Silverman may be the strong type, but -- unlike the City of Riverside -- he definitely isn't silent.

Here's a guy -- Ara Melkonians -- who I'm definitely glad is no longer with the L.A. Sheriff's Department. Read the whole thing, including but not limited to the line that says: "Melkonians had 14 administrative hearings in 10 years of service and nine of the allegations were sustained." Wholly apart from the stuff he (allegedly) did to his ex-girlfriend here.

Oh, yeah. Melkonians was fired even before this latest incident, back in 2003. For -- you guessed it -- yet another incident of domestic violence (with a different woman). But Melkonians appealed that termination and the parties agreed to reduce the penalty to a 30-day suspension. That really taught him a lesson, huh?

Basically, a guy who was in a gang stole a car, and a police officer testified at trial: "Well, if you steal a car, you're able to use that car to commit crimes on behalf of a gang if you feel like it, so yeah, I'd stay that stealing the car was in furtherance of gang activity." And on that basis the judge and jury said, sure, he's guilty of the gang enhancement.

Which is absurd. Sure, maybe he stole the car to commit a gang crime. Or maybe he just stole the freaking car. Everything in your life doesn't revolve around advancing your gang just because you're in one. Eating Doritos ain't for the gang. Nor is stealing a car so you can drive to the store and buy the Doritos. There's no proof beyond a reasonable doubt that just 'cause a guy steals a car and drives it around where he lives that's done to advance the gang.

Which is ultimately what Justice Cornell holds. To my great satisfaction.

You don't see too many venue cases in the Court of Appeal. But here's one.

For good reason, too. Here's a case where the defendant (smartly) moves to change venue -- from Santa Clara to Orange County -- not only to get a better jury pool, but principally to make it a monster hassle for plaintiff and his lawyers. Who wants to do a tiny debt collection case 500 miles away from home?

Smart. Especially if you win the motion. Which the defendant indeed does in the trial court.

But that's why we have writs. Including the one granted here, which reverses the decision below.

I think the decision is both equitable and right on the law. You gotta sue a consumer debtor in his venue. And if you harass him about his consumer debt, you better be prepared to confront litigation in the same place.

It's apparently class action day today at the Ninth Circuit, as three of the four civil cases published today review class action complaints. And whatever one might think about the allegedly "liberal" Ninth, it's not a day that will make plaintiff's side class action lawyers happy. Plaintiffs lose in every single case.

The first case, Vinole v. Countrywide Home Loans, affirms the refusal to certify a wage and hour class. The second, Doe v. Abbot Laboratories, takes away $17.5 million from the class (pursuant to a high-low settlement) by holding that there's no monopoly leveraging claim under Section 2 absent an antitrust refusal to deal. The third and final case, Mevorah v. Wells Fargo, reverses and remands the district court's decision to certify.

There are certainly some upsides to being a class action lawyer. But ease of victory assuredly ain't one of 'em. Trust me.

Monday, July 06, 2009

The police get a report of a person who's been missing for around a month. Something to investigate, of course, but not desperately urgent, which is why even though they receive the call at 8:00 a.m., they don't bother to investigate until later that afternoon.

When they arrive, they speak with the manager of the apartment complex. A guy who turns out to be a really bad guy, but they don't know that yet. After talking with him, he seems very shady, especially when he won't consent to letting them search some storage space at the complex. But they realize that they don't have nearly enough for probable cause, or even to attempt to get a warrant from a sympathetic judge.

So what do they do? Bust down the doors. And find damning evidence.

At which point the defendant unsuccessfully moves to suppress, and is ultimately sentenced to death. So the California Supreme Court gets the case. What result?

Yep. Unanimously affirms. There were "exigent circumstances" that negated the requirement for a warrant because it was an "emergency situation" that "require[d] swift action to prevent imminent danger to life." Yes, a full month had passed, and yes, they were in no rush to investigate initially. But once they realized they had no probable cause, and even though there was nothing at all to suggest that a live (or even dead) person was in the storage area, you never know. Hence you can bust the doors down to your heart's content, and use the evidence that you just "happen" to find therein.

Rogers is a bad dude. I'm happy he's off the streets of San Diego. But I'm also incredibly disturbed by the willingness of the California judiciary to find "exigent circumstances" in any setting in which you don't roll off your chair laughing at the suggesting that someone might perhaps, just maybe, in a parallel universe be alive and waiting desperately to be found in whatever area the police happen to want to search. Which happens in this case, and without a single dissenting peep.

Thursday, July 02, 2009

It's a light admonishment from the Third Circuit, and that -- plus the love that you can virtually feel come off the page from the report -- is pretty much everything that Chief Judge Kozinski could hope for in the process. Yes, he left some stuff on his computer he shouldn't have, but he realizes that now, and has been punished for his (minor) transgressions more than enough by the publicity and reputational hit alone. So sayeth the Third Circuit in 38 pages.

Chief Judge Kozinski did exactly the right things during the investigation, and today's result amply reflects that fact. Being forthcoming on the facts and saying mea culpa repeatedly is exactly what the Third Circuit wanted to hear in this one. And is exactly what Chief Judge Kozinski did. (Which doesn't necessarily come naturally when your first instinct is undoubtedly: "This is my private stuff. Get out of my life.")

All I have to say on the merits is that I shudder at the day when my life is subjected to anywhere near the scrutiny that Chief Judge Kozinski's has been on this one. Sure, it comes with the job, I know. But still. Yikes.

First, did you realize that you're subject to admiralty jurisdiction when you're hanging out at Mission Bay? You apparently are. (For those not familiar with Mission Bay, it's essentially a recreational playground that's used somewhat like a large pool. Not something you'd especially think was a navigable waterway or would in any way be governed by admiralty law. But it is.)

Second, more broadly, I wonder whether this case isn't a perfect test case for the validity of Oliver Wendell Holmes' maxim "The life of the law is experience, not logic." Judge Rymer writes the opinion here, and as a matter of pure reasoning, I think her arguments largely make sense. Mission Bay ebbs and flows with the tide, and there's at least the potential for an impact on "navigation" broadly defined.

But none of the members of the panel live in San Diego, and perhaps none of them have ever been to Mission Bay. This stands in sharp contrast to both the district court judge -- Judge Miller -- and the undersigned, who lives within (figurative) spitting distance of the area in question. If you've actually been there, and know what it's about and how it's used, it's much harder to come to the conclusion that the area used for jet skiing here is really under admiralty jurisdiction. Which, I think at least in part, is why Judge Miller came to a contrary conclusion than the panel. That, I might add, plus the potential injustice of having admiralty law govern what would ordinarily be a routine negligence claim; here, the defendant is trying use admiralty law to preempt a state law tort claim and limit their liability to the $6,005 value of the Jet Ski under the Shipowners Limitation of Liability Act -- an Act that almost assuredly did not contemplate governing situation like those here.

When I say this is a good test case for the maxim, I don't think it strongly falls on one side or the other. But I do think there are competing perspectives here, and that those divergent views explain in large part why the district and appellate courts diverge on this one. So definitely something to think about.

It's a great case on many levels. The premise of which starts with the following: "Dude, you can't make me pull up my weed. I'll sue!" Which is exactly what happens.

Basically, a Butte County Sheriff's deputy comes to the plaintiff's house, takes a gander and both the large number of pot plants and the plaintiff's medical marijuana card, and orders him to destroy all but 12 of the 41 plants under penalty of arrest. Plaintiff does so, but then sues, asserting that as part of a collective, he should have been allowed to grow all 41. (We all assume, as we must given the procedural posture of the case, that he's right; that state law didn't limit the plaintiff to only 12 plants.)

Defendants then seek summary judgment on a stupid ground, which both the trial court and the Court of Appeal properly reject. You don't "waive" your right to object to the destruction of your property by "voluntarily" complying with a command under penalty of arrest. That's just silly.

But the tougher question, in my mind, is whether you can sue for the destruction of property -- here, marijuana -- that's illegal to possess under federal law. That's the central issue on appeal, and the one on which the majority and dissent disagree.

When I first read the majority opinion by Justice Raye, I was persuaded. Plus, it has an intuitive feel. The Compassionate Use Act lets you grow this stuff. If you're deprived of that right by an arrest-threatening police officer, you can sue. You lost property, after all -- property that state law expressly allowed you to have. There's got to be a remedy for that, and just like you can sue for any other deprivation of property, so too here.

There's a lot to that. A lot. It makes a great deal of sense to me. Moreover, as a policy matter, I think that's right.

But here's the problem. Notwithstanding the CUA, this stuff is still illegal. It's contraband. You can't sue for the loss of stuff you're not legally entitled to have. Sure, there's presently nothing in state law that says you can't possess the stuff. But federal law is quite clear. Moreover, as we all know from the Supremecy Clause, federal law trumps state law when the two conflict.

Justice Raye has a response to that, and it's a plausible one. He says that the contraband cases "all involve property characterized as such under the laws of the seizing jurisdiction" (which don't apply here since the seizing jurisdiction, California, doesn't make the property illegal) and argues that because "the deputy was acting under color of California law, not federal law . . . . the propriety of his conduct is measured by California law." This is a tolerable distinguishing feature, as indeed the typical contraband case is precisely as Justice Raye describes 'em.

But, in the end, I think that this distinction doesn't in fact matter. Contraband is contraband if it's illegal in the jurisdiction, regardless of whether that illegality generates from local, state, or federal law. You can't sue for its loss, since -- legally -- it's undisputed that you never should have had it. Plus, Justice Morrison makes a tangential point that even state officers take an oath to uphold the federal constitution as well, which doesn't really matter legally, but does show that we're not nearly as authority-specific as one might otherwise believe.

Here's the hypothetical -- actually, not a hypothetical, but the real world -- that ultimately flipped me. Suppose that state law imposes no penalty for X, but federal law does. Let's take something even more innocuous than marijuana; say, articles that depict the Great Seal of the United States. Federal law says they're illegal under a wide variety of settings. (Ditto for the Swiss Confederation Coat of Arms.) California law, by contrast, doesn't make such items illegal anywhere. Imagine that a state officer sees such property and destroys it. Liability?

Not in my view. It's illegal. Doesn't matter why; federal or state. Wouldn't even matter if a state passes a law that said it allowed the Great Seal or Swiss Coat of Arms everywhere. Still illegal. Still contraband. May still be destroyed without liability.

What's true for the Seal is true for Chronic. Sorry about that. Not protected.

So even as a matter of first doctrinal principles, I think that the dissent gets it right. Contraband is contraband. You can't sue for it. That alone properly disposes of the issue.

But with marijuana, there's even a secondary problem. Federal law expressly provides that with respect to marijuana and other controlled substances, "no property right shall exist." I'm sorry, but if that's what federal law indeed provides, then you've indeed got no property right in it, and can't sue for the deprivation of a property right that you failed to possess as a matter of law.

This again just follows as a matter of first principles. Let's imagine, for example, that the federal government has passed the following law: "The title to all marijuana located in the United States is hereby declared to be vested in the United States." If the property is thereby owned by the U.S., when you're deprived of it, you can't sue. And that's essentially what 21 U.S.C. 881(a) does by subjecting all such property to forfeiture and stating that no individual property right exists therefor. Same result. You can't sue for the loss of something to which, pursuant to the supreme law of the land, you have no rights.

Am I happy about this? No. Do I wish -- as does Justice Morrison -- that federal law provided otherwise? Darn toot'n.

But the law is what the law is. And I think, here, the law says that plaintiff has to lose. And that Justice Morrison is right and Justice Raye is wrong.

We'll see if this one stands. But, in my view, I reluctantly conclude that it should not.

Rarely is there a consistent theme for the day. Much less one that spans both the state and federal appellate cases. But today may be an exception.

Glenn Johndrow is on trial, and he wants to testify. He repeatedly and expressly says so, both to his lawyer and to the judge. But the judge doesn't care, and the lawyer won't call him to the stand. That's a clear violation of the defendant's constitutional rights.

Again, a seeminly anomalous result. But then again, we probably do already know how the trial will come out. This one's an SVP case, to the question is whether Johndrow's going to be involuntarily committed potentially forever -- a serious deprivation of liberty -- on the ground that he's a sexually violent predator. But here's just a snippet of the undisputed facts:

"In 1986 defendant was convicted of lewd conduct with a child under 14 years of age. Defendant "volunteered" to take a developmentally disabled 12-year-old boy who was attending the Special Olympics to the bathroom. Once in the bathroom, defendant fondled and orally copulated the boy. Defendant admitted the conduct and stated that prior to taking the boy into the bathroom he had been thinking of finding a child and having sex as soon as the situation presented itself. Defendant said that he enjoyed what he had done and that "he sucks penises every chance he gets."

In 1994 defendant was convicted of sodomy with an incompetent person. Defendant forced a 22-year-old developmentally disabled male onto a bed and "forcibly penetrated his anus with [defendant’s] penis" and threatened to send the "Hell’s Angels" after the victim if he told anyone what had happened. Defendant admitted the sodomy as well as fondling and orally copulating the victim’s penis, but claimed that the acts were consensual and the comment about the Hell’s Angels was a joke.

In 1995 defendant was convicted of lewd conduct with a child under 14 years of age. Defendant admitted twice fondling the penis of, and was caught kissing, the five-year-old son of a woman who was living with defendant and defendant’s wife.

In addition to the above SVP qualifying offenses, defendant also committed several other sexual offenses and had two misdemeanor convictions for sexual misconduct. In 1980 defendant was convicted of lewd conduct with a child after having an eight- or nine-year-old boy orally copulate him while he orally copulated a seven-year-old girl as she squatted on his face.

In 1994 defendant was convicted of misdemeanor sexual battery. He admitted that he repeatedly propositioned a woman at a bus stop, followed her into a public bathroom when she tried to get away from him, put his hand inside her pants, and fondled her vagina. Defendant told Dr. Davis that he was "quite intoxicated" and "out of control" when this happened. In 2003 defendant was found in violation of parole for putting his finger into the anus of a 21-year-old autistic man, conduct that defendant said he liked doing. Defendant believed that sex with a child was "okay" if he perceived the child as consenting. . . ."

"It's clear that Richard Lynn Bible killed a 9-year old girl for totally no reason. Given that fact, we all know that pretty much any judge or jury would vote to sentence him to death. So I don't care what errors might have been made. They're harmless."

Which, quite frankly, seems factually accurate. There's no extensive torture here. But if you kidnap a nine-year old girl who's riding her bike in a neighborhood, sexually assault her, and then bash her head in, there's not much more one needs to say. Anyone with a child -- or who has a friend or family member with a child -- is going to think: "That could easily have been my child or my friend's child." You're getting sentenced to death.

But isn't it a somewhat strange system that allows -- indeed, arguably compels -- such a facile result? For a heavily process-oriented democracy, it's a bit anomalous to me to say that even in the context of the ultimate state-sponsored penalty, we don't really care about process, since we already know what you'll receive.

We all understand, of course, why the system takes that approach. But it's still an interesting system.